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Arbitration Law

Chapter 16 DELAY AND LACK OF CO-OPERATION BY THE PARTIES TO THE ARBITRATION POWERS AVAILABLE TO COUNTER DELAY AND LACK OF CO-OPERATION 1 Reasons for delay 16.1 It is far from uncommon for arbitration proceedings to be greeted with a lack of enthusiasm by one or both of the parties. As far as the claimant is concerned, statutory and contractual limitation periods may require a claimant to commence arbitration proceedings speedily, and in arbitration this will normally mean requiring the other party to comply with his obligations to appoint, or agree to the appointment of, an arbitrator. 2 Such a step may be taken purely as a protective measure in the first instance, and subsequent investigation by the claimant may reveal difficulties in formulating points of claim or obtaining the necessary witnesses; accordingly, in the absence of any instruction to the arbitrators to proceed, nothing may happen in the arbitration. A respondent faced with inactivity by the claimant is likely to wish to keep his head down in the hope that the claimant’s other activities or problems may cause him to overlook the arbitration, although there may come a point at which the respondent will wish to take steps to bring the proceedings to an end, on the basis that a fair hearing may no longer be possible or that important evidence or witnesses may cease to be available. The problems posed to a respondent of having to face a stale claim are indeed the very basis for statutory limitation periods. Turning to the respondent’s position where the claimant does wish to prosecute his claim, the respondent may have a variety of reasons for dragging matters out, most importantly the hope that faced with obfuscation the claimant might simply give up or be forced, by impecuniosity, to abandon proceedings. Accordingly, it is important that the arbitrators have clear and enforceable powers to ensure that an arbitration proceeds at the proper rate, with neither party having any opportunity to delay or to hold matters up by failure to co-operate.

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